STATE OF NEW JERSEY v. TIECE RIDDICK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TIECE RIDDICK,

Defendant-Appellant.

________________________________

November 6, 2014

Submitted January 15, 2014 Decided

Before Judges Grall, Nugent and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 10-01-0335.

Hunt, Hamlin & Ridley, attorneys for appellant (Raymond L. Hamlin, of counsel; Terry Ridley, on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by

GRALL, P.J.A.D.

A jury found defendant Tiece Riddick guilty of vehicular homicide, a crime of the second degree, N.J.S.A. 2C:11-5(a) and three counts of assault by auto, a crime of the fourth degree, N.J.S.A. 2C:12-1c(2). At the conclusion of the trial, the judge found defendant guilty of driving while intoxicated, N.J.S.A. 39:4-50, and reckless driving, N.J.S.A. 39:4-96. Subsequently, the judge denied defendant's motions for a judgment of acquittal and a new trial. The judge merged defendant's convictions for reckless driving and driving while intoxicated. The judge sentenced defendant as follows: for vehicular homicide, a seven-year term of imprisonment that is subject to periods of parole ineligibility and supervision required by the No Early Release Act, N.J.S.A. 2C:43-7.2; for each of the assault by auto convictions, a nine-month term of imprisonment that is concurrent with the seven-year sentence; and for driving while under the influence, a concurrent two days in jail. The judge also imposed all mandatory fines, assessments and penalties and, pursuant to N.J.S.A. 2C:51-2a, barred defendant from holding public office.

On appeal defendant presents these arguments for our consideration

I. THE TRIAL COURT, OVER THE DEFENDANT'S

OBJECTION, ALLOWED THE ACCIDENT RECONSTRUCTIONIST TO TESTIFY AS TO HIS FINDINGS, NOTWITHSTANDING THE FACT THAT THE EXPERT'S REPORT CONSTITUTED A "NET OPINION"; AS SUCH, THE COURT COMMITTED REVERSIBLE ERROR BY ALLOWING THE AFORESAID TESTIMONY TO GO BEFORE THE JURY.

II. THE GRAND JURY INDICTMENT WAS DEFICIENT

IN THAT IT PRESENTED NO TESTIMONY AS TO CAUSATION; ACCORDINGLY, DEFENDANT RIDDICK'S CONVICTION MUST BE REVERSED AND THE CHARGES AGAINST HER DISMISSED.

III. THE COURT COMMITTED PREJUDICIAL ERROR

BY ALLOWING VIDEOTAPE EVIDENCE INTO THE JURY ROOM FOR THE JUROR'S VIEWING DURING DELIBERATIONS.

IV. TIECE RIDDICK IS ENTITLED TO A NEW

TRIAL DUE TO CUMULATIVE TRIAL ERRORS.

V. ERRORS IN THE CHARGE TO THE JURY HAD

THE CAPACITY OF PRODUCING AN UNJUST RESULT; CONSISTENT WITH NEW JERSEY LAW, DEFENDANT RIDDICK'S CONVICTION MUST BE REVERSED.

VI. DEFENDANT'S SENTENCE IS EXCESSIVE.

In her reply brief, defendant elaborates on her argument about the reconstruction expert's testimony.

For the reasons that follow, we reject defendant's claims.

I

The two-car collision that led to defendant's charges and conviction occurred in the eastbound lanes of the Atlantic City Expressway in Winslow, Camden County, shortly before 11:45 p.m. on July 30, 2009. The weather was clear and the roadway was dry. Defendant was travelling alone in an Acura. Darlene Siska was driving a Ford Taurus, and she had three passengers with her her friend Kathleen Lucas, who was in the front seat, and her thirteen-year old son and his friend, who were in the back seat. After colliding, both cars went off the roadway. Siska's car moved across another eastbound lane to the left, hit the guardrail and stopped in trees in a ravine-like median dividing the eastbound and westbound lanes. Defendant's car skidded toward the shoulder of the right eastbound lane, struck a guardrail beyond the shoulder and went down an embankment beyond the expressway.

Everyone inside the cars was injured. Lucas died at the scene of the accident as a consequence of the injuries she sustained. The others were taken to the hospital for treatment of injuries that were not life threatening. Defendant complained of pain in her leg. Siska and the teenagers were treated for head injuries and a variety of other things including bruising and swelling, bumps and scratches, a split lip and stomach, and limb and back pain.

There are two eastbound lanes where the accident occurred, and both women claimed to be travelling in the right lane when the front of the Acura and the rear of Taurus made contact. There is no dispute that the points of contact were at the front of the Acura and the rear of the Taurus, but not license plate to license plate. Pieces of the taillight cover from the Taurus were embedded in the hood and front grill of the Acura, and the Acura's front bumper was displaced and partially lodged on the car's under-carriage. The Taurus had damage to one taillight and the Acura had damage to a front light.1

The disputed question was how the collision occurred. The State's theory of the case was that defendant recklessly caused Lucas' death and injured the others by driving while intoxicated. Defendant's breath carried a strong odor of alcohol detected by an off-duty police officer who happened upon the scene and by the state trooper who first responded to the off-duty officer's report of the accident. In addition, a test of defendant's blood taken at the hospital indicated that her blood alcohol concentration (BAC) was .133 at 2:44 a.m. The State's toxicology expert opined that her BAC would have been between .12 and .18 at the time of the accident. In addition, the off-duty officer who first came to defendant's assistance testified that he detected an odor of burnt marijuana in her car.

The theory of the defense was that the State failed to prove beyond a reasonable doubt that defendant caused the accident. Although the defense did not produce any evidence, it relied on the fact that the State did not have a witness who could give an account of how the cars collided. Siska testified that she did not even know that another car was involved and initially thought that one of her car's tires may have blown out. Neither of the boys saw what happened. They simply heard and felt the impact.

Although defendant did not testify, defense counsel also relied on the account defendant gave to the state trooper who responded to the accident. Her statement was memorialized on a recording made with the officer's troop-car "dash-cam," a device with the capacity to record audio and video that is mounted to the windshield and faces forward.

At one point defendant suggested that Siska suddenly braked in front of her, and at another point she suggested that Siska struck her while moving from the left to the right lane. The pertinent dialogue was as follows

Okay, what happened?

I was driving in this lane. They were over in the right and they slammed on their brakes cause I was already in this lane cause I take this Exit 38, oh, thank you. I take Exit 38 for my exit, yeah and so.

Your were in the right lane of travel. What happened, where did you brake or where did the two vehicles strike?

Um, oooh.

Not on the roadway but on the cars?

Um, my front end to their rear end.

Okay, so you're driving, you're in the right lane?

Yes and they were over in the left lane and then they just came over and I tried to slam on my brakes.

They caught your front end?

Yes.

And then you went off the roadway right near that guardrail (inaudible)?

Basically, sir, yes.

The dash-cam recording, which also included audio but not video of defendant's performance on field sobriety tests, was admitted into evidence and played for the jury. Without objection, that recording was given to the deliberating jurors for their use in the jury room along with the other exhibits and a device to replay the recording.

The State presented testimony from a state police detective whom the judge qualified as an expert in accident reconstruction. Prior to trial, the judge concluded that the detective's opinion that the accident was caused by defendant's intoxication was an inadmissible net opinion and required the expertise of a forensic toxicologist or pharmacologist. Nevertheless, the judge rejected defendant's claim that the detective's opinion on how the accident happened was a net opinion and concluded that he could present that testimony to the jury. She stressed that the detective could not testify about defendant's intoxication or "how she herself personally caused the accident" or that "she lost control of her vehicle" but could testify as to "how the accident physically occurred" and "which part of the cars touched each other," none of which was "net opinion" because it was based on the physical evidence.

II

Having considered the record in light of the arguments defendant presents to support the issues she raises, we conclude that none has sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). Accordingly, we provide only a brief explanation of our reasons for rejecting each of the issues raised.

Pursuant to N.J.R.E. 702, when "scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue," a person qualified may testify thereto "in the form of an opinion or otherwise." The manner in which the initial contact between the Taurus and Acura occurred was critical to a fact in issue, which was the drivers' respective roles in the accident. The detective's testimony was about the significance of skid marks, tire marks, scrape marks and their relative positions and what the post-collision movement of the cars indicated. That evidence is of the type of evidence that the detective's testimony could help them understand because those matters are not within the common understanding of jurors. See, e.g., Heinzerling v. Goldfarb, 359 N.J. Super. 1, 13-14 (Law Div. 2002) (discussing the admissibility of a nurse's expert testimony explaining medical records in lay terms).

Defendant claims the judge's exclusion of the detective's opinion that defendant caused the accident because she was intoxicated required exclusion of his testimony explaining what the physical evidence showed. The claim is not supported by any decision defendant brings to our attention and is contrary to the plain meaning of N.J.R.E. 702.

Defendant's claim of error in the denial of her motion to dismiss the indictment is based on an argument different than the argument she presented in the trial court. In the trial court, defendant argued that the dash-cam recording was exculpatory evidence that the State was obligated to present. On appeal, she argues that the State did not provide the grand jurors adequate evidence of causation to support a finding of probable cause. See State v. Morrison, 188 N.J. 2, 13 (2006); State v. Cook, 330 N.J. Super. 395, 410 (App. Div.), certif. denied, 165 N.J. 486 (2000). Setting aside defendant's failure to raise the issue prior to trial to reach the merits, the evidence was adequate to support the charges in the indictment. It showed that fatal and less serious injuries were sustained by the occupants of a car struck in the rear by a car driven by an intoxicated driver in clear weather, on a dry highway with light traffic.

Defendant's next claim concerns jury deliberations. Acknowledging that there was no objection at the time, defendant now contends that the court erred in giving the deliberating jurors the dash-cam recording along with the other trial exhibits admitted into evidence. There is no question that under a recent decision of the Supreme Court, trial courts should give special consideration before giving deliberating jurors free access to recordings that include the defendant's pre-trial statements. See generally State v. A.R., 213 N.J. 542 (2013); State v. Burr, 195 N.J. 119 (2008). This recording included pre-trial statements made by defendant.

But the argument defendant presents on this appeal that the procedure violated her right to be present at a critical stage of the trial has been rejected by the Supreme Court. A.R., supra, 213 N.J. at 557-59.

Moreover, we are persuaded by the State's argument that in this case defense counsel's silence on the four occasions where the procedure was discussed before the recording was given to the deliberating jurors amounts to acquiescence inviting the error that bars relief on appeal. Id. at 561-62. Given the strength of the State's evidence of defendant's BAC and the physical evidence that establishes a rear-end hit, we are confident that application of the invited error doctrine will not result in a miscarriage of justice. Ibid.

Turning to defendant's claim of error in the jury instruction on causation, we note that the State, not defendant, objected to that instruction. Accordingly, our review is for plain error. "In respect of a late claim of error in a jury instruction, 'plain error requires demonstration of legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Singleton, 211 N.J. 157, 182-83 (2012) (quoting State v. Chapland, 187 N.J. 275, 289 (2006) (quoting State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970))).

The question of causation in this case was one of but-for cause and required consideration of the intervening or contributory acts of Siska. The judge's initial instruction made that clear. In response to the prosecutor advising the judge that she had misspoken in delivering a portion of the instruction unrelated to causation, the judge redelivered the unrelated portion of the charge and did not refer to causation at all. Defendant's argument, as we understand it, hinges on the omission of any reference to causation in the second instruction. Reading the instruction as a whole, as we must, we have no question that the charge was not confusing and adequately conveyed the law pertinent to issues the jurors had to decide and related that law to the pertinent facts. State v. Ghandi, 201 N.J. 161, 193 (2010).

We reject defendant's claim that the cumulative effect of trial errors warrants relief. We have rejected every claim of error properly raised in a point heading. R. 2:6-2(a)(5). The additional claims of error defendant raises only in arguing cumulative error considered singly or together do not cast doubt on the verdict.

The State's evidence, viewed in the light most favorable to the State, was more than adequate to support a finding of guilt beyond a reasonable doubt on each count of the indictment. State v. Reyes, 50 N.J. 454, 458-59 (1967). Given defendant's BAC and the evidence that she drove into the back of and under Siska's car, we cannot conclude that a miscarriage of justice under the law is clearly apparent. R. 2:10-1; State v. Afanador, 134 N.J. 162, 178 (1993).

To establish cumulative error, defendant also points to: the assistant prosecutor's repeated leading questions; a conversation between the prosecutor and the State's accident reconstruction expert during a break in his testimony; and the prosecutor's reference in summation to the odor of marijuana in defendant's car detected by the off-duty officer who came to defendant's assistance, a fact to which the off-duty officer had testified at trial without objection.

Defendant failed to establish any prejudice from the prosecutor's conduct about which she complains. As the judge noted in ruling on the violation of the sequestration order mid-trial, because she would not permit the expert witness to go beyond his report, the potential for prejudice was diminished. In ruling on the motion for a new trial, the judge noted that she interrupted the summation and directed the jurors to disregard the prosecutor's improper argument about someone in defendant's car smoking marijuana when defense counsel objected. And, in addressing defendant's motion for a new trial, the judge noted that the only prejudice defendant identified the tendency to make defense counsel appear to be an obstructionist was insufficient to cast doubt on the verdict.

We find no basis for disturbing the judge's assessment of the prejudice in this case. The conduct complained of was improper, but, viewed singly or collectively, the improprieties were not sufficiently "egregious" to deprive "the defendant of the right to a fair trial." State v. Josephs, 174 N.J. 44, 124 (2002).

Finding no basis to disturb defendant's convictions, we have considered her objection to the judge's finding of the aggravating factor based on risk of recidivism, N.J.S.A. 2C:44-1a(3), and the judge's rejection of her request for a sentence on second-degree vehicular homicide that is within the third-degree range, N.J.S.A. 2C:44-1f(2). Defendant's prior conviction for refusing a breathalyzer test was adequately supported by an abstract of her driving record. Contrary to defendant's argument, the judge found that refusal was indicative of a risk that defendant might commit another crime of this sort, despite her otherwise law abiding history that supported the judge's finding of the mitigating factor recognized in N.J.S.A. 2C:44-1b(7).

The judge carefully articulated the factual findings that led her to sentence defendant as she did. The judge's findings on and balancing of the aggravating and mitigating factors are supported by adequate evidence in the record; the sentence is fully consistent with sentencing provisions of the Code of Criminal Justice, including N.J.S.A. 2C:44-1f(2), which the judge addressed; and the sentence is not shocking to the judicial conscience. See State v. Bieniek, 200 N.J. 601, 608 (2010); State v. Cassady, 198 N.J. 165, 180-81 (2009). Accordingly, we see no basis to disturb defendant's sentence.

Affirmed.

1 While the officer was testifying, he was using photographs and diagrams none of which are included in the record provided to us on appeal.